New Orleans Asylum Lawyers
Seeking Asylum in the United States
In 2018, over 70,000 people sought admission to the United States based on a fear of returning to their country of origin.
Under federal law, the U.S. provides protection in the form of asylum to individuals who have been persecuted or have a well-founded fear of persecution in their country of origin.
This is based on one of five protected grounds. The protected grounds are race, religion, political opinion, nationality or membership in a particular social group. Pursuant to an international treaty to which the U.S. is a signatory nation, the law protects individuals who are likely to be tortured if they return to their country.
There are very specific requirements that must be met in order to receive protection from either persecution or torture.
Requirements for Asylum
While tens of thousands of individuals may fear returning to their country of origin, many do not meet the statutory requirements to receive asylum. To be eligible for asylum, your fear of returning must be based on certain facts. You must apply for asylum within a certain time frame, and there must not be any circumstances that bar you from receiving asylum. One example would be participation in a terrorist organization.
To qualify for asylum, you must each of the following elements:
1. You have a well-founded fear of persecution
The Immigration and Nationality Act does not expressly define the term ”persecution”. It is only included in its the definition of “refugee”:
“Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”
Level of Persecution as defined by the Courts
Courts have held that determining what actions rise to the level of persecution is dependent on the facts of the case. However, the actions must involve an offensive infliction of harm or suffering and must amount to more than mere harassment, unpleasantness or even basic suffering.
To determine whether your past experience or future fears rise to the level of persecution, you should seek the advice of a knowledgeable and experienced immigration attorney.
2. Your fear is due to past persecution or fear of future persecution in your country of origin
In support of your asylum application, you may describe one or more past experiences of persecution you suffered in your country of origin. Or, you may demonstrate that, while you have not been persecuted in the past, you have a well-founded fear that you will be persecuted if you were forced to return.
If you were persecuted in the past, but no longer have a well-founded fear of future persecution, you may be granted asylum. However, the persecution has to be so severe that you are unable or unwilling to return to your country. Or alternatively, if there is a reasonable possibility that you will be seriously harmed when you return.
3. The persecution is based on your race, religion, nationality, political opinion or membership in a particular social group.
Many people seek to build a better life in the U.S. and fear returning to their countries. These reasons include serious crime, poverty or disease. Asylum is only granted to those who suffer persecution based on their race, religion, nationality, political opinion or membership in a particular social group.
Membership in a particular social group is one ground for asylum that is frequently litigated. Government attorneys argue a more narrow and limited interpretation, and immigration defense attorneys argue for an interpretation, based on case law. The case law may protect their client and their client’s family from future harm.
Social groups whose members have received asylum based on their persecution include: homosexuals, child soldiers, and social classes.
To quality for this protected ground, you must be a member of a social group that:
1) shares common immutable or fundamental traits;
2) is socially distinct and
3) is particular.
4. The persecutor is the government or sponsored by the government, or your government is unable or unwilling to protect you from persecution
Lastly, you must show that the persecutor (past or future) is the government itself or an individual or entity sponsor
ed by the government. Alternatively, for some reason, the government cannot or will not protect you from your persecutor.
Sometimes, proving that the government cannot or will not protect you can be complex. You may satisfy this element by demonstrating that, although your government is willing to protect you, their efforts fall short of actually protecting you from persecution.</p>
One-Year Filing Deadline for Asylum
Federal law requires that you apply for asylum within one year of entering the United States. You must demonstrate that you met this deadline with clear and convincing evidence.
In practice, this means that if you were not lawfully admitted into the U.S. That is, an immigration official did not inspect and admit you into the U.S. at a lawful point of entry. You must prove that you entered the country not more than one year before you filed your asylum application. This date is determined by the date that U.S. Citizenship and Immigration Services (CIS) received your application — not the dates when you filled out or mailed your application. Therefore, it is important not to leave your application until the last minute.
Not Lawfully Admitted
If you were not lawfully admitted you will need various forms of evidence in support of your date of entry. This may include witness testimony. There are two exceptions to this rule: changed circumstances and extraordinary circumstances relating to your delay.
In addition to the one-year deadline, there are several other bars to asylum. Including, but not limited to, if you yourself were a persecutor or terrorist, or convicted of a particularly serious crime.
Convention Against Torture
If you do not meet the statutory requirements to receive asylum status, you may still seek asylum. This depends on whether your circumstances prohibit your removal under the Convention Against Torture.
The Convention Against Torture prohibits signatory nations from returning an individual to a country where it is likely they will be tortured. To apply for protection under this law, you can indicate on your asylum application that you are also applying for Withholding of Removal. Unlike asylum, there is no deadline to apply for Withholding of Removal. If you do not otherwise meet the statutory requirements of asylum, you may be granted Withholding of Removal. However, you will not receive the added benefits of asylee status, including a pathway to U.S. citizenship.
Contact Us
If you or a family member fear returning to your country due to past or future risk of persecution, let us help you obtain asylum. We are experienced and skilled immigration attorneys. Our team of immigration attorneys have helped clients gain lawful status in the U. S. and later become citizens. For a complimentary consultation, contact us today at (504) 523-6496.
